Thursday, February 22, 2018

What is Originalism circa 2018?

By Eric Segall

I spent last Friday and Saturday at the works-in-progress Originalism Conference at the University of San Diego. Professors Mike Rappaport, Mike Ramsey, Steve Smith, and Larry Alexander were wonderful hosts. I highly recommend this annual conference for anyone interested in originalism specifically or constitutional theory generally. I learned a tremendous amount from the papers presented and the robust, civil, and interesting discussions that took place. One thing I didn't learn, however, was what is Originalism circa 2018.

I began my talk (which Professor Chris Green graciously and fairly commented on) addressing a question Professor Michael McConnell had raised earlier in the day: what role should originalism play in hard Supreme Court cases implicating contested moral, political, and legal values? I mentioned that given Trump's promise to nominate "originalist" judges, this question was more important than ever.

My answer to McConnell's question was that, if I had my way, the Court would not strike down a law unless the plaintiff could show by clear and convincing evidence that the challenged statute is at an irreconcilable variance with either clear constitutional text or universally accepted agreements about the history behind the text. I then sheepishly announced to the group that my view made me a true originalist. That snippet didn't go over very well.

I identified a number of well-known originalsts in the room, including Randy Barnett and Evan Bernick, Will Baude and Steve Sachs, the three Mikes (Ramsey, Rappaport and McConnell), Kurt Lash, and Steve Smith. Jack Balkin was also present, but other than Barnett, no one really knows why Balkin calls himself an originalist. Anyway, my point was that Baude and Sachs believe cases like Brown v. Board of Education, Lawrence v. Texas and the same-sex marriage decisions show that "originalism is our law," while none of the three Mikes or Barnett, or almost anyone else in the room take that position. Their views are emphatically not that originalism is our law, but that it should be our law.

I also observed that Barnett's and Bernick's libertarian form of originalism with strong judicial engagement is worlds away from other more deferential kinds of originalism. Moreover, Rappaport's and McGinnis's "original methods" theory, which calls for judges to only apply the interpretative methods of the founders, is a distant relative to some of the forms of originalism advocated by others in the room.

I pointed to Professor Tom Colby, also present, and said that he (along with Professor Peter Smith) had written a series of articles making a persuasive case that the so-called "New Originalism" is indistinguishable from living constitutionalism in most respects, as Steve Smith has also observed many times. Mike Ramsey responded that the New Originalism may well be a minority view among modern originalists, which I think supports my theory that we really don't know what originalism is any more. Tongue-in-cheek (a bit), I asked whether anyone thought Balkin, a self-proclaimed progressive "originalist" would ever be nominated by this Administration, making the point that it is conservatism, not originalism, driving the nominations.

I also pointed out that Barnett had written a persuasive piece years ago arguing that Justice Scalia was not an originalist, yet most people still claim that he was. Trump, of course, has said that he would only appoint originalists in Scalia's "mold."  Barnett addressed that conundrum by telling the group that when he wrote that article he was in a foul mood because of Scalia's vote in Gonzalez, v. Raich (commerce clause allows Congress to regulate homegrown, non-commercial marijuana) which Barnett had argued and lost.  Importantly though, Barnett did not say he was wrong when he wrote the piece (though he has not repeated the charge since), which led me to ask again if anyone in the room could please tell me what originalism is, given all the different types of people who claim the originalist mantle (and those who don't).

To say that question fell flat would be an understatement. The overriding response was that these originalist folks and others not present had a lot more in common than I was suggesting, although it was a bit fuzzy what exactly that was. I assume it has something to do with the idea that the meaning of the constitutional text is fixed at the time of ratification and should play a dominant role in constitutional interpretation. The problem with that notion is that Baude, Sachs, and Balkin all believe that a judge who says that the original meaning of the 14th Amendment allows him to update notions of equality and liberty as time goes on, just as Justice Kennedy wrote in Lawrence and Obergefell, is a judge acting in a way consistent with an originalist approach (even if the judge is wrong about what the 14th Amendment actually requires). But I responded that if it is "originalist" to say that judges should not use originalism, then orginalism and non-originalism are the same thing. Baude and Sach, among others, then argued that coming to that interpretation about the 14th Amendment through originalism (even if wrong) is different than coming to it some other way. I said that whether judges apply the 14th Amendment through a living constitutionalist method because that is what the original meaning tells us judges ought to do, or because it just makes sense to interpret the Amendment that way, has no relevance to real cases. Either way, judges will decide cases based on modern values, not the values of 1868.

An originalist judge in 2018 could believe that she should aggressively review economic legislation, or maybe even all legislation (Barnett's  and Bernick's view), or be quite (or at least more) deferential to most legislation (McConnell and maybe Rappaport and Lash). An originalist judge could also use the vague phrases of the Constitution to update notions of liberty, speech, property, due process, etc.,  (Baude, Sachs, Balkin), or shouldn't update the Constitution that way and only use the original methods embraced by the framers (Rappaport and McGinnis). And there are many other theories of originalism currently adopted by or advocated for by many other legal scholars that have some elements of these theories, but deny others.

I learned a lot at this conference, and the company was wonderful and the papers excellent. But I did not learn what originalism is circa 2018. That is probably not the fault of the people in the room, however, because the question simply cannot be satisfactorily answered by anyone, much less the President or his special Federalist Society judicial nomination guru Leonard Leo, who are committed to nominating "originalist" judges, whatever the heck that means.